## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 1 1998 

### PATRICK FISHER Clerk 

### PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

SUSAN BARNEY, KATHY CHRISTENSEN, Plaintiffs-Appellants,

v. GERALD R. PULSIPHER, individually and in his Official Capacity, Defendant, BOX ELDER COUNTY, UTAH, a political subdivision of the State of Utah; ROBERT E. LIMB; LEE ALLEN, Commissioner, in his official capacity; JAMES WHITE, Commissioner, in his official capacity; ALLEN JENSEN, Commissioner, in his official capacity, Defendants-Appellees. No. 96-4192

Appeal from the United States District Court

for the District of Utah (D.C. No. 94-CV-128)

Kathryn Collard, of The Law Firm of Kathryn Collard , L.C., Salt Lake City, Utah (David Bert Havas and Sharon S. Sipes, of Gridley, Ward, Havas, Hamilton & Shaw, Ogden, Utah, with her on the brief), for Plai ntiffs-Appellants.-2-

Karra J. Porter, of Christensen & Jensen, P.C. (Dal e J. Lambert, of Christensen & Jensen, with her on the brief), Salt Lake City, Uta h, for Defendants-Appellees.

Before SEYMOUR , Chief Judge, ANDERSON, and HENRY , Circuit Judges.

SEYMOUR , Chief Judge.1 Ms. Barney’s and Ms. Christensen’s complaints also alleged various

pendent state law claims. The parties stipulated t o the dismissal of these claims against all defendants except Mr. Pulsipher, and th e district court dismissed the state law claims on October 11, 1995. Aplt. App. at 559. The district court certified the appeal under Fed. R. Civ. P. 54(b) an d stayed the trial of Mr. Pulsipher pending the outcome. -3- While serving 48-hour sentences for minor offenses at Box Elder County Jail in Utah, Kathy Christensen and Susan Barney we re on separate occasions sexually assaulted by jailer Gerald Pulsipher. Ms. Christensen and Ms. Barney each brought suit against Gerald Pulsipher, Box Eld er County, Sheriff Robert Limb, and County Commissioners Lee Allen, James Whi te, and Allen Jensen under 42 U.S.C. § 1983 alleging violations under th e First, Eighth, Ninth, and Fourteenth Amendments based on Mr. Pulsipher’s sexu al assault and other conditions of confinement arising out of their two- day incarcerations. The two actions were consolidated, and all defendants excep t Mr. Pulsipher moved for summary judgment. The district court granted the m otion. Ms. Christensen and Ms. Barney appeal, 1 and we affirm.

I In accordance with state law requiring “the separat ion of prisoners by sex,” Utah Stat. Ann. § 17-22-5 (1995 repl.), women inmat es at Box Elder County Jail are placed in solitary confinement in a cell specif ically designated for females.-4-

The female cell is eight-by-eight feet in dimension , and the door to the cell contains a small window which is covered by a manil la envelope taped to the outside of the door. Below the covered window is asmall opening with a trap door which is used to provide inmates a food tray. The cell is located on the first floor of the jail adjacent to the jail officer’s de sk. On the separate occasions Ms. Barney and Ms. Christensen were confined at Box Eld er County Jail, they each allege the following inadequate conditions:

The mattress was soiled and torn; the pillow filthyand uncovered by a pillow case; there was no clean plac e for plaintiffs to place their clothing when they went t o bed; the sink, toilet, shower fixtures and soap were dirty; there was profanity scribbled on the walls of the c ell; the lighting was inadequate and the air in the cell dur ing the summer months when the plaintiffs were confined the re, was stifling due to the lack of any adequate circul ation, ventilation, or air conditioning in the cell, and t he food was cold and unappetizing. Aplt. Br. at 14. Several closed circuit television cameras are in th e jail and linked to monitors in the dispatch area to aid jail officials in maintaining the security of the facility. No cameras monitor the outside exercise area commonly known as the “bullpen.” Aplt. App. at 216-17, 499. Although di spatchers generally watch the monitors in concert with their dispatch duties, the y are under no obligation to view them continuously.-5-

The Jail Policies and Procedures Manual specificall y instructs jailers to “give notification prior to entering the cell block s of the opposite sex” to the dispatcher who “will monitor the cell block.” Id. at 230-31. Moreover, male jailers are prohibited from “remov[ing] female inmates from their cells without another officer being physically present.” Id. at 229. Ordinarily two jailers are required to be on duty per shift, but when one jail er is sick or on vacation a second jailer is usually not called in due to under staffing and budgetary constraints. The manual further prohibits jailers from accepting sex or other favors from prisoners, forbids staff members from t aking any prisoners out of the jail for any reason except to perform authorized ja il work assignments, and prohibits discrimination against any prisoner on th e basis of sex. As a result of overcrowding in the jail, the indoorexercise area and library are used to house overflow male prisoners, and wome n are therefore excluded from using these spaces. Because of the lack of mo nitoring and services available to women inmates, a report evaluating the jail conc luded “[t]he present configuration of space dictates that the facility n ot house women inmates for periods of time longer than several hours.” Aplt. App. at 501. Recognizing that the facilities at Box Elder County Jail are inadequ ate for holding women prisoners for any considerable length of time, Sheriff Limb o rdinarily follows a “verbal policy” of confining only women who need to be deta ined for 24-36 hours at the-6-

jail. Id. at 212-13. The County usually contracts out to ja ils in neighboring counties to house women prisoners sentenced for lon ger periods of time unless these jails are full, in which case female inmates are kept at Box Elder County Jail. Early in the morning of May 15, 1993, Kathy Christe nsen arrived at Box Elder County Jail to serve a 48-hour sentence for aDUI conviction and was placed in the female cell. Later that day, Gerald Pulsipher, the only jailer on duty at the time, removed Ms. Christensen from her cell without informing the dispatcher as required by jail policy and led her o utside to the unmonitored “bullpen” area where he sexually assaulted her. Mr . Pulsipher threatened to keep Ms. Christensen in jail longer than 48 hours if she did not perform oral sex as he demanded. After completing her sentence, Ms. Chris tensen did not report the incident of assault to the County. On July 10, 1993, Susan Barney was placed in the fe male cell at Box Elder County Jail to serve a 48-hour sentence for shoplif ting. Mr. Pulsipher, who once again was the only jailer on duty, took Ms. Barney to the same unmonitored area without informing the dispatcher and sexually assau lted her. Ms. Barney also did not report the incident to the County upon her rele ase. However, Ms. Barney showed her drug counselor a sexually explicit note Mr. Pulsipher had written her while in jail and told her counselor about the assault. The counselor reported Mr.-7-

Pulsipher’s conduct to Ms. Barney’s probation offic er, who in turn reported the incident to Sheriff Limb. The County subsequently learned that Ms. Christensen had also been previously assaulted by Mr. Pulsipher

. On August 24, 1993, Sheriff Limb terminated Mr. Pul sipher’s employment. Criminal charges were filed against Mr. Pulsipher, who pled guilty to forcible sexual abuse of Ms. Christensen. As part of the pl ea agreement, the criminal charges relating to the sexual assault of Ms. Barne y were dismissed. During the time Mr. Pulsipher was employed by the B ox Elder County Sheriff’s Department, Utah law required all peace o fficers to be certified and successfully complete a basic training course at a certified academy. See Utah Code Ann. § 67-15-7 (1991) (subsequently amended an d renumbered as Utah Code Ann. § 53-6-205 (1994)). Before being accepte d for admission to a state certified training program, the applicant must unde rgo a background investigation, which includes a criminal history ch eck, to determine the applicant’s “good moral character.” Id. § 67-15-6. If the criminal history check reveals convictions for crimes punishable by impris onment at a state or federal penitentiary or an offense involving dishonesty, un lawful sexual conduct, physical violence, or drugs, the applicant is denied admissi on. Id. Mr. Pulsipher was accepted for admission at the Utah Law Enforcement Academy of Weber State University, a state certifie d basic training program. The-8-

background investigation on Mr. Pulsipher turned up one arrest for possession of alcohol at age seventeen and several speeding ticke ts, but nothing serious enough to deny him admission to the academy. Upon success fully graduating from the academy, Mr. Pulsipher was certified as a peace off icer. Mr. Pulsipher was hired as a Deputy Sheriff by the Box Elder County Sheriff’s Department in 1991. The department follo wed its standard procedure in hiring Mr. Pulsipher. After he submitted an applic ation, Sergeant Yeates interviewed him, checked his application, and conta cted his references who all provided positive statements about him. There was no policy in effect requiring written letters of recommendations or written reports of the Sergeant’s conversations with these references. Mr. Pulsipher ’s application was then sent to Sheriff Limb for final approval. Mr. Pulsipher satisfactorily completed the basic co rrectional officer course offered by the Department of Corrections, fulfillin g the minimum requirements to exercise peace officer authority as a correctional officer in the state of Utah. During the course, Mr. Pulsipher received instructi on on offenders’ rights, staff/inmate relations, sexual harassment, and cros s-gender search and supervision. He also took continuing education cou rses throughout his employment at Box Elder County Jail to maintain his state certification as a peace officer.-9-

Mr. Pulsipher received a copy of the Jail Policy an d Procedures Manual in November 1992, and he was required to read it in it s entirety and “be familiar with its contents and comply with its directives.” Aplt. App. at 226. In an employee performance appraisal dated February 2, 19 93, Mr. Pulsipher received satisfactory to above satisfactory grades in all categories. Before the incidents involving Ms. Christensen and Ms. Barney, Mr. Pulsi pher had not been the subject of any disciplinary action and Sheriff Limb considered him one of his better officers. James White, Lee Allen, and Allen Jensen were the C ounty Commissioners at the time the events underlying this appeal took place. The Commissioners were responsible for funding the jail but did not exerci se day-to-day supervision or administration of the jail, which was left entirelyto Sheriff Limb. Under state law, the Sheriff is charged with keeping the countyjail and its prisoners and is the final policymaking authority for jail operations. See Utah Stat. Ann. § 17-22-2 to -4; Aplt. App. at 227. The sexual assaults on Ms. Christensen and Ms. Barn ey were the only incidents of sexual misconduct by Box Elder County jailers of which Sheriff Limb was aware during his more than thirty-year tenure a s the County’s sheriff. The Commissioners likewise lacked knowledge of any alle ged sexual misconduct by jailers or any complaints about inadequate conditio ns at the jail for female2 Ms. Barney also named as defendants unknown indivi duals, John Does IIV, who supervised and trained Mr. Pulsipher. -10- inmates prior to the Christensen and Barney incidents. The record reveals the only problem Sheriff Limb mentioned to one of the C ommissioners was that of overcrowding, which resulted in his having to send prisoners elsewhere due to lack of space in the jail. Susan Barney brought this action against Gerald Pul sipher, Box Elder County, Sheriff Limb and Commissioners Allen, White , and Jensen in their official and individual capacities under 42 U.S.C. § 1983 for the sexual assault by Mr. Pulsipher and other conditions of confinement arising out of her two-day incarceration at Box Elder County Jail. 2 Ms. Barney alleges that defendants’ inadequate policies and facilities for women inmate s, their failure to adequately staff, train, and supervise jailers, and their fail ure to take reasonable measures to protect her well-being and bodily integrity violate d her rights under the First, Eighth, Ninth, and Fourteenth Amendments of the Uni ted States Constitution. She seeks monetary damages, declaratory and injunct ive relief, and attorneys fees and costs. Ms. Christensen also brought a section 1983 action against the same defendants, alleging similar constitutional violati ons and seeking similar relief for3 Ms. Barney and Ms. Christensen contend the distric t court failed to

address their claims for declaratory and injunctive relief. Plaintiffs lack standing to asssert these claims. A “plaintiff cannot maint ain a declaratory or injunctive action unless he or she can demonstrate a good chan ce of being likewise injured (continued...) -11- her two-day incarceration at the jail. These actio ns were subsequently consolidated by the district court. The district court granted the motions of the County, Sheriff Limb, and Commissioners Allen, White, and Jensen for summary judgment. The court was persuaded that defendants had not acted with the re quired “deliberate indifference” to violate the Eighth Amendment, noti ng the absence of any previously reported incidents of sexual misconduct by Mr. Pulsipher or any jailers, and holding that the conditions of plainti ffs’ confinement did not rise to the level of cruel and unusual punishment in light of the brevity of their stay. The court further found no evidence in the record demon strating that jail conditions for female prisoners violated clearly established e qual protection rights, and concluded that defendants’ policy of holding women inmates in solitary confinement when arrangements could not be made to transport them to other jails was reasonably related to the legitimate penal inte rest of providing separate housing for men and women prisoners. The court thu s granted the individual defendants qualified immunity on all damage claims and granted judgment in favor of defendants on all claims in the complaint. 33 (...continued)

in the future.” Facio v. Jones , 929 F.2d 541, 544 (10th Cir. 1991); see also City of Los Angeles v Lyons , 461 U.S. 95, 104-05 (1983); Green v. Branson , 108 F.3d 1296, 1299-1300 (10th Cir. 1997). Plaintiffs have failed to so demonstrate, and we decline to speculate that Ms. Barney and Ms. Chr istensen will likely end up in Box Elder County Jail again some time in the future . See Lyons , 461 U.S. at 104- 05. The only claims before us therefore are plaint iffs’ claims for damages.

4 A suit against individual defendants in their offi cial capacities is essentially the same as a suit against the County. See Monell v. Department of Soc. Servs. , 436 U.S. 658, 690 n.55 (1978); Starrett v. Wadley , 876 F.2d 808, 813 (10th Cir. 1989). -12- II We begin our review with Ms. Barney’s and Ms. Chris tensen’s claims against the County and Sheriff Limb and the Commiss ioners in their official capacities. 4 We review a district court’s grant of summary jud gment de novo, viewing all the evidence in the light most favorabl e to the nonmoving party. Seymore v. Shawver & Sons, Inc. , 111 F.3d 794, 797 (10th Cir. 1997). Summary judgment is appropriate only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a m atter of law. Id. The moving party does not have to negate the nonmovant’s claim s in order to obtain summary judgment. Allen v. Muskogee , 119 F.3d 837, 840 (10th Cir. 1997). “[T]he movant only bears the initial burden of ‘“showing”- -that is pointing out to the district court--that there is an absence of evidenc e to support the nonmoving party’s case.’” Id. (quoting Celotex Corp. v. Catrett , 477 U.S. 317, 325 (1986)).-13-

“If the movant carries this initial burden, the non -movant may not rest upon its pleadings, but must set forth specific facts showin g a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.” Kaul v. Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996). The County may be held liable under 42 U.S.C. § 198 3 only for its own unconstitutional or illegal policies and not for th e tortious acts of its employees.
See Monell v. Department of Soc. Servs. , 436 U.S. 690, 694 (1978). The Supreme Court recently revisited the issue of munic ipal liability and held that a municipality is liable only when the official polic y is the “‘moving force’ behind the injury alleged. That is, a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and deprivation o f federal rights.” Board of County Comm’rs v. Brown , 117 S. Ct. 1382, 1388 (1997). The Supreme Court observed in Brownthat when an official municipal policy itself violates federal law, issues of culpability and causation are straightforward; simply proving the existence of th e unlawful policy puts an end to the question. See id. at 1388-89. The Court distinguished the above situation from a case in which the policy at issue is lawful on its face and the municipality therefore has not directly inflicted the injury thr ough its own-14-

actions. The Court concluded that determining culp ability and causation in the latter circumstance “present[s] much more difficultproblems of proof.” Id. at 1389. In these situations, in keeping with the dic tates of Monell , the Court believed that “rigorous standards of culpability an d causation must be applied to ensure that the municipality is not held liable sol ely for the actions of its employee.” Id. Ms. Barney and Ms. Christensen do not contend the County maintains an official policy of sexually harassing, assaulting, or discriminating against women prisoners. Nor do they contend Sheri ff Limb authorized Mr. Pulsipher’s sexual assaults. Rather, plaintiffs es sentially argue the County is liable for its conduct in hiring and training Mr. P ulsipher. Accordingly, this situation falls within that category of cases in wh ich the Supreme Court has mandated that “rigorous standards of culpability an d causation must be applied.” Id. at 1389. We turn first to the claim based on the alleged ina dequate training. In City of Canton v. Harris , 489 U.S. 378 (1989), the Supreme Court held that municipal liability based on a policy of inadequate training requires proof of the municipality’s “deliberate indifference” to its inh abitants--i.e., the failure to train must “reflect[ ] a ‘deliberate’ or ‘conscious’ choi ce by a municipality.” Id. at5 As we discuss infra , a finding of “deliberate indifference” is also re quired

to hold prison officials liable for violating inmat es’ Eighth Amendment right to humane conditions of confinement. Deliberate indif ference, however, is defined differently for Eighth Amendment and municipal liab ility purposes. In the prison conditions context, deliberate indifference is a su bjective standard requiring actual knowledge of a risk by the official. In the municipal liability context, deliberate indifference is an objective standard wh ich is satisified if the risk is so obvious that the official should have known of it. See generallyFarmer v. Brennan , 511 U.S. 825, 840-42 (1994) (discussing City of C anton v. Harris , 489 U.S. 378 (1989)). -15- 389. 5 The deliberate indifference standard may be satis fied when the municipality has actual or constructive notice that its action o r failure to act is substantially certain to result in a constitutional violation, an d it consciously or deliberately chooses to disregard the risk of harm. See Brown , 117 S. Ct. at 1390. In most instances, notice can be established by proving the existence of a pattern of tortious conduct. Id. In a “narrow range of circumstances,” however, de liberate indifference may be found absent a pattern of uncon stitutional behavior if a violation of federal rights is a “highly predictabl e” or “plainly obvious” consequence of a municipality’s action or inaction, such as when a municipality fails to train an employee in specific skills neede d to handle recurring situations, thus presenting an obvious potential for constituti onal violations. Brown , 117 S. Ct. at 1391; Canton , 489 U.S. at 390 & n.10. Here, plaintiffs’ failure-to-train claim fails beca use the record contains no evidence tending to show that the County acted withdeliberate indifference. The-16-

Sheriff and the Commissioners testified in their de positions they were unaware of any previous incidents involving the sexual assaultof an inmate by a Box Elder County jailer or of any complaints about the treatm ent of women inmates at the jail. Plaintiffs proffered no evidence to the cont rary. Consequently, no pattern of violations existed to put the County on notice thatits training program was deficient in this regard. In addition, this case does not fall within the nar row range of circumstances justifying a finding of deliberate indifference abs ent a pattern of violations. Mr. Pulsipher completed a state certified basic peace o fficer training program and a correctional officer course after he was hired, whi ch included instruction on offenders’ rights, staff/inmate relations, sexual h arassment, and cross-gender search and supervision. Plaintiffs have not come f orward with evidence pertaining to the adequacy of the instruction he re ceived in these courses. We thus have no reason to conclude that Mr. Pulsipher received constitutionally deficient training. See Andrews v. Fowler , 98 F.3d 1069, 1077 (8th Cir. 1996). Even if the courses concerning gender issues and in mates’ rights were less than adequate, we are not persuaded that a plainly obvio us consequence of a deficient training program would be the sexual assault of inm ates. Specific or extensive training hardly seems necessary for a jailer to kno w that sexually assaulting inmates is inappropriate behavior. See id. (“In light of the regular law6 Plaintiffs cannot base their inadequate hiring cla im on a pattern of poor

hiring decisions since, as stated above, no previou s incidents of sexual assault have occurred in the thirty-three years of Sheriff Limb’s tenure. -17- enforcement duties of a police officer, we cannot c onclude that there was a patently obvious need for the city to specifically train officers not to rape young women.”) We next consider plaintiffs’ claim based on the dec ision to hire Mr. Pulsipher. In Brown , the Supreme Court specifically examined the showi ng required to hold a municipality liable for a single inadequate hiring decision. 6 The Court emphasized the difference between failure -to-train and inadequatehiring claims and refused to simply “import the rea soning of Cantoninto the hiring context.” Id. at 1391. The Court observed that basing municipal liability on an official’s failure to carefully scrutinze an application for employment poses the “greatest risk” that a municipality will be hel d liable for the actions of its employees rather than its own actions, since every injury inflicted by a municipal employee can be traced to hiring in a but-for sense . Id. at 1391, 1394. The Court therefore held that when reviewing hiring decisions , courts must take even greater care to adhere to stringent culpability and causati on standards, id. at 1394, and carefully “test the link” between the policymaker’s hiring decision and the particular injury alleged, id

. at 1391.7We note that the focus of the inquiry in determini ng when a single poor

hiring decision is sufficient to constitute deliber ate indifference appears to be on the actual background of the individual applicant a nd not on the thoroughness or adequacy of the municipality’s review of the applic ation itself. As the Supreme Court took great pains to point out, unlike the obv ious “risk from a particular glaring omission in a training regimen” (such as a failure to train a police officer in the use of deadly force), it is much harder to predict the consequences of a single instance of a municipality’s failure to adeq uately screen an applicant. Brown , 117 S. Ct. at 1382. Whether or not an unsuitable applicant is ultimately hired depends more on his actual history than the a ctions or inactions of the municipality. Take, for example, a situation in wh ich a hiring official completely fails to screen an application and hires an applica nt, but the applicant actually has a spotless background. In such cases, the Court ha s stated that the hiring official cannot be said to have consciously disregarded an o bvious risk that the applicant would inflict constitutional harm on the citizens o f the municipality when even a thorough investigation would have revealed no cause for concern. Id. at 1391-92.

-18- Merely showing that a municipal officer engaged in less than careful scrutiny of an applicant resulting in a generalized risk of harm is not enough to meet the rigorous requirements of “deliberate indif ference.” Id. at 1392. Culpability requires a strong connection between th e background of the particular applicant and the specific constitutional violation alleged. Establishing municipal liability in the hiring context requires a finding that “ this officer was highly likely to inflict the particularinjury suffered by the plaintiff.” Id. 7 Mr. Pulsipher’s background investigation revealed an arrest at age seventeen for possession of alcohol and several spe eding tickets. He completed a state certified basic training program, to which he would have been denied admission had he been convicted of any crimes invol ving unlawful sexual conduct8 We also reject plaintiffs’ assertions that the Cou nty should be held liable

for adopting an “official defacto policy,” Aplt. Br . at 20, of permitting a single jail officer to be on duty alone when the second ja iler is sick or on vacation, and for failing to adopt various policies to adequatelysupervise jailers and protect women prisoners, including notifying inmates of the ir rights to be free from sexual assault and providing formal avenues of comp laint for inmates and formal sanctioning procedures for jailers. The record rev eals no previous incidents of sexual harassment or assault of female inmates at B ox Elder County Jail which would provide actual or constructive notice to the County that its one-jailer policy and failure to adopt certain policies would result in the specific injuries alleged here. Nor are we persuaded that a plainly obvious consequence of failing to adopt such policies or having one male jailer on duty is the sexual assault of female inmates. Cf. Hovater v. Robinson , 1 F.3d 1063, 1066 (10th Cir. 1993). -19- or physical violence. Plaintiffs have presented no evidence that Mr. Pulsipher’s background could have led Sheriff Limb to conclude Mr. Pulsipher was highly likely to inflict sexual assault on female inmates if hired as a correctional officer.
See id. at 1393 (applicant’s pleas of guilty to various tr affic violations and assault and battery, resisting arrest, and public drunkenne ss arising out of college fight did not make use of excessive force a plainly obvio us consequence of decision to hire him as a police officer). The County is there fore not liable for Sheriff Limb’s decision to hire Mr. Pulsipher. 8

III Ms. Barney and Ms. Christensen also sued the Sherif f and the Commissioners in their individual capacities. Qual ified immunity is an affirmative defense against section 1983 damage cla ims available to public-20-

officials sued in their individual capacities. Wil son v. Meeks , 52 F.3d 1547, 1552 (10th Cir. 1995). Government officials are shielde d from liability if “their conduct does not violate clearly established statut ory or constitutional rights of which a reasonable person would have known.” Harlo w v. Fitzgerald , 457 U.S. 800, 818 (1982). Plaintiffs maintain the district court erred in granting qualified immunity to the individual defendants, contending d efendants violated their clearly established rights under the Eighth Amendme nt and Equal Protection Clause. “In analyzing qualified immunity claims, we first a sk if a plaintiff has asserted the violation of a constitutional right atall, and then assess whether the right was clearly established at the time of a defe ndant’s actions.” Gehl Group v. Koby , 63 F.3d 1528, 1533 (10th Cir. 1995) (citing Siege rt v. Gilley , 500 U.S. 226, 232 (1991)). “We review summary judgment decisions involving a qualified immunity defense somewhat differently than other su mmary judgment rulings.” Hannula v. City of Lakewood , 907 F.2d 129, 130 (10th Cir. 1990). Once a defendant raises the defense, the plaintiff assumes the burden of “(1) coming forward with sufficient facts to show that the defe ndant’s conduct violated the law; and (2) demonstrating that the relevant law wa s clearly established when the alleged violation occurred.” Gehl Group , 63 F.3d at 1533. “Where a plaintiff fails to demonstrate that a defendant’s conduct vio lated the law, we need not9 Deciding the “purely legal question” of whether a constitutional violation

exists at all first allows courts “expeditiously to weed out” essentially meritless claims early in the proceedings. Siegert v. Gilley , 500 U.S. 226, 232 (1991). Qualified immunity provides immunity from suit as w ell as from liability and serves the important purpose of protecting public o fficials from unnecessarily going forward with the costly burdens of trial. Id

. ; Wilson v. Meeks , 52 F.3d 1547, 1552 (10th Cir. 1995).

10Although plaintiffs generally invoke other constitutional amendments in their complaints, their claims concerning condition s of confinement “remain[ ] bounded by the Eighth Amendment, the explicit textu al source of constitutional protection in the prison context.” Adkins v. Rodri guez , 59 F.3d 1034, 1037 (10th Cir. 1995) (internal quotations and citations omitt ed); see also Riddle v. (continued...) -21- reach the issue of whether the law was clearly established.” Id. 9 The district court here held that plaintiffs failed to state cla ims under the Eighth Amendment or the Equal Protection Clause, and granted qualifi ed immunity on these grounds. We address plaintiffs’ claims in turn. A. Eighth Amendment Prison officials are required to provide humane con ditions of confinement by ensuring inmates receive the basic necessities o f adequate food, clothing, shelter, and medical care and by taking reasonable measures to guarantee the inmates’ safety. See Farmer v. Brennan , 511 U.S. 825, 832-33 (1994). Plaintiffs contend Sheriff Limb and the Commissioners violatedtheir Eighth Amendment rights by failing to protect them from Mr. Pulsiphe r’s sexual harassment and assaults and by the inhumane conditions they allege dly suffered during their twoday incarcerations. 1010 (...continued)

Mondragon , 83 F.3d 1197, 1202 (10th Cir. 1996) (inmate’s cla im of inadequate medical care analyzed under Eighth Amendment and no t more general provisions of substantive due process).

11 Although plaintiffs allege Mr. Pulsipher subjectedthem to severe verbal sexual harassment and intimidation, these acts of v erbal harassment alone are not sufficient to state a claim under the Eighth Amendm ent. See Adkins , 59 F.3d at 1037. Plaintiffs’ claims of verbal harassment are only actionable “[i]n combination” with the assaults. See , e.g. , Women Prisoners v. District of (continued...) -22- In order to hold prison officials liable for violat ing an inmate’s right to humane conditions of confinement, two requirements must be met. First, the deprivation alleged must be objectively “sufficient ly serious,” Wilson v. Seiter , 501 U.S. 294, 298 (1991), depriving the inmate of “ ‘the minimal civilized measure of life’s necessities,’” id. (quoting Rhodes v. Chapman , 452 U.S. 337, 347 (1981)). Second, the official must have a “suf ficiently culpable state of mind,” which in this context means the official mus t exhibit “deliberate indifference” to a substantial risk of serious harmto an inmate. Farmer, 511 U.S. at 834; Wilson , 501 U.S. at 297. Thus, the deliberate indifferen ce standard in a prison-conditions case is a “subjective” and not an“objective” requirement. That is, a prison official is liable only if the “offici al knows of and disregards an excessive risk to inmate health and safety.” Farme r , 511 U.S. at 837. It is not enough to establish that the official should have known of the risk of harm. Id. With regard to plaintiffs’ sexual assault claims, 11 we have expressly11 (...continued)

Columbia , 877 F. Supp. 634, 665 (D.D.C. 1994) (observing th at “when officers make sexual remarks in an environment where sexual assaults of women prisoners by officers are well known and inadequately address ed” such conduct “mutually heighten[s]” the injury to women prisoners), vacate d in part, modified in part , 899 F. Supp. 659 (D.D.C. 1995), vacated in part and rem anded , 93 F.3d 910 (D.C. Cir. 1996). We therefore focus on plaintiffs’ sexual as sault claims.

12Plaintiffs also point to a report stating that BoxElder County Jail was overcrowded, did not meet regulatory standards, lac ked adequate monitoring, and was particularly inadequate for detaining female pr isoners for extended lengths of time as evidence of the County’s knowledge of the s ubstantial risk of harm faced by female inmates at the jail. However, if a priso n official responds reasonably to a risk of harm, he will not be held liable even if the harm ultimately is not prevented. Farmer , 511 U.S. at 844-45. (“A prison official’s duty u nder the Eighth Amendment is to ensure reasonable safety, a standard that incorporates due regard for prison officials’ unenviable task of keeping dangerous men [and

(continued...) -23- acknowledged that an “inmate has a constitutional r ight to be secure in her bodily integrity and free from attack by prison guards.” Hovater v. Robinson , 1 F.3d 1063, 1068 (10th Cir. 1993). Clearly plaintiffs’ d eprivations resulting from the sexual assaults are sufficiently serious to constitute a violation under the Eighth Amendment. Nevertheless, Ms. Barney and Ms. Christ ensen have not shown that Sheriff Limb and the Commissioners were deliberatel y indifferent in failing to protect them from Mr. Pulsipher’s assaults. Plaint iffs maintain defendants knew of the substantial risk posed by permitting Mr. Pul sipher to be the sole guard on duty and consciously disregarded that risk. To sup port their claims of defendants’ knowledge, plaintiffs rely primarily on defendants’ official policy requiring two jailers to be present when female prisoners were re moved from their cell. 12This12 (...continued)

women] in safe custody under humane conditions.”) ( internal quotations and citations omitted). Sheriff Limb acknowledged thes e problems and took reasonable measures to alleviate the risk of harm t o female inmates. He contracted out to neighboring county jails with better facilities for women and whenever possible detained women only for 24-36 hou rs at the jail. Ms. Barney’s and Ms. Christensen’s confinements exceeded this li mit by only twelve hours. In light of the reasonable measures taken in response to the conditions listed in the report, plaintiffs cannot establish that County def endants acted with deliberate indifference. -24- policy, in plaintiffs’ view, clearly reflects defen dants’ understanding that a substantial risk of sexual misconduct to female inm ates existed when only one male jailer was present. We explicitly rejected this argument in Hovater , which involved very similar facts and controls here. There, Mr. Robins on, a detention officer, called Ms. Hovater, a female inmate, from her cell to the library. In violation of jail policy which required that female inmates be accomp anied by either a female officer or at least two male officers, Ms. Hovater was left alone with Mr. Robinson, who then sexually assaulted her. Id. at 1064-65. Prior to this incident, neither the sheriff nor the county commissioners kn ew of any complaints from female inmates about sexual misconduct by Mr. Robin son or any other jail officer. Id. at 1064. We held Ms. Hovater failed to establish that the sheriff and the county commissioners acted with deliberate indiffer ence--i.e., that the defendants “disregarded an obvious risk to the safety of femal e inmates by allowing a single13 Because Hovaterwas decided before the Supreme Court’s decision in

Farmer , we applied the objective test under the deliberat e indifference standard. -25- male guard to have custody of a female inmate absen t any indication that the guard would assault her.” Id. at 1066. 13 We further stated:

[T]he mere existence of the policy at issue does no t establish an obvious risk that females left alone w ith male guards are likely to be assaulted. Sheriff Hill had no knowledge that Mr. Robinson was a threat to the female inmates. Any known harm could stem only from the mere fact of Mr. Robinson’s gend er. To find harm present in these circumstances would, in effect, require the conclusion that every male guar d is a risk to the bodily integrity of a female inmate whe never the two are left alone. There is absolutely no evi dence in this record to support that conclusion. Id. at 1068. Nor does the record here contain any evidence to in dicate that male guards at Box Elder County Jail, if left alone with female inmates, posed a risk to their health and safety. As in Hovater , we decline to find knowledge by Sheriff Limb and the Commissioners of a substantial risk of harmfrom the mere fact of Mr. Pulsipher’s gender. Without any evidence of sexual misconduct in Mr. Pulsipher’s background or any evidence of previous incidents of sexual misconduct by Box Elder County jailers, plaintiffs have failed to raise a fact question on whether the Sheriff and the Commissione rs acted with deliberate indifference under either an objective or subjectiv e standard.-26-

With regard to the general conditions of confinement, plaintiffs specifically allege a filthy cell, inadequate lighting and venti lation, lack of enclosures around the shower and toilet, unappetizing food, and no ac cess to recreational facilities. The Eighth Amendment “does not mandate comfortable prisons,” and conditions imposed may be “restrictive and even harsh.” Rhode s , 452 U.S. at 347, 349. An important factor in determining whether conditions of confinement meet constitutional standards is the length of the incar ceration. Thus, a “filthy, overcrowded cell and a diet of ‘grue’ might be tole rable for a few days and intolerably cruel for weeks or months.” Hutto v. F inney , 437 U.S. 678, 686-87 (1978). Courts have repeatedly held that similar and far worse conditions fail to state a claim because of the brief nature of the in carceration. See , e.g. , Whitnack v. Douglas County , 16 F.3d 954, 958 (8th Cir. 1994) (deplorably filthy and patently offensive cell with excrement and vomit no t unconstitutional because conditions lasted only for 24 hours); White v. Nix , 7 F.3d 120, 121 (8th Cir. 1993) (eleven day stay in unsanitary cell not uncon stitutional because of relative brevity of stay and availability of cleaning suppli es); Harris v. Fleming , 839 F.2d 1232, 1235-36 (7th Cir. 1988) (five day stay in “fi lthy, roach-infested cell” not unconstitutional); see also Ogbolu v. McLemore , 1997 WL 49449, at *2 (10th Cir. Feb. 2, 1997) (cold, wet, drafty, and unsanitary so litary cell for two days does not14Plaintiffs’ reliance on Women Prisoners v. Distric t of Columbia , 877 F.

Supp. 634 (D.D.C. 1994), vacated in part, modified in part , 899 F. Supp. 659 (D.D.C. 1995), vacated in part and remanded , 93 F.3d 910 (D.C. Cir. 1996), to support their Eighth Amendment claims is misplaced. Women Prisoners involved repeated reports and incidents of prison guards sexually assaulting and harassing women inmates. Despite prison officials’ knowledge of this longstanding abuse, the officials ignored the reports and took no reaso nable measures to alleviate these conditions. See id. at 639-43, 664-67. As to the general conditions o f confinement, the plaintiff class in Women Prisoners included prisoners incarcerated for longer periods of time and the con ditions alleged were far more extensive and serious than the ones alleged here. See id. at 648-53, 670-72 (finding general prison conditions violated Eighth Amendment “not because they produce surroundings which are unattractive or foodwhich is unappetizing” but “because they combine to create an unconstitutional ly high exposure to illness or injury”).

15 Plaintiffs assert that sexual harassment and sexua l assault are actionable as an equal protection violation under 42 U.S.C. § 1983 without a showing that a comparable group of males are likewise being harass ed, citing Starrett v. Wadley , 876 F.2d 808, 814 (10th Cir. 1989). Starrettinvolved a suit brought by a female county employee against the county and her male sup ervisor for sexual harassment and retaliatory discharge. Id. at 812, 814. We are not confronted here with a charge of sexual harassment in the employmentcontext. Claims of sexual harassment and assault of inmates by prison guards are more properly analyzed under the Eighth Amendment. See supraat pp. 21-22. The Equal Protection (continued...) -27- violate Eighth Amendment). Plaintiffs’ allegations simply do not rise to the level of a constitutional violation. 14

B. Equal Protection Ms. Barney and Ms. Christensen contend defendants d iscriminated against them on the basis of their sex in violation of the Equal Protection Clause by subjecting them to sexual harassment and assault, 15 placing them in solitary15 (...continued)

Clause in the prison-conditions context is usually invoked to remedy disparities in educational, vocational, and recreational programs offered to male and female inmates. See , e.g. , Women Prisoners v. District of Columbia , 93 F.3d 910, 924- 27 (D.C. Cir. 1996); Klinger v. Department of Corre ctions , 31 F.3d 727 (8th Cir. 1994).

16In responding to plaintiffs’ Equal Protection argu ment, defendants rely on the majority opinions in Women Prisoners v. District of Columbia , 93 F.3d 910 (D.C. Cir. 1996), and Klinger v. Department of Corr ections , 31 F.3d 727 (8th Cir. 1994). In view of our determination that plaintiff s have presented no evidence in support of their Equal Protection claim, we need no t assess the analyses of the majority and dissenting opinions set out in those c ases. -28- confinement when male inmates are not ordinarily pl aced in solitary confinement, and denying them access to educational and recreati onal facilities and programs offered to male inmates. The Equal Protection Clau se requires the government to treat similarly situated people alike. City of Cle burne v. Cleburne Living Ctr. , 473 U.S. 432, 439 (1985). In order to assert a viable equal protection claim, plaintiffs must first make a threshold showing thatthey were treated differently from others who were similarly situated to them. S ee Gehl Group , 63 F.3d at
1538. Plaintiffs have not come forward with any evidence indicating that women serving two-day sentences at Box Elder County Jail received treatment different from men serving similar lengths of time. 16 Nor have they presented evidence of the relative number of men and women prisoners, the average length of stays of men and women prisoners, and what programs are offe red to male prisoners.17Moreover, considering that state law requires the separation of men and

women inmates and that the jail houses primarily ma le prisoners while female inmates are ordinarily detained for only brief peri ods of time and contracted out to neighboring jails, the County defendants’ policyof keeping women in solitary confinement reflects a legitimate and rational deci sion to provide for the safety of inmates and the efficient running of the jail. We hesitate to interfere with prison officials’ decisions concerning the day-to-day admi nistration of prisons, to which we must accord deference. See Turner v. Safley , 482 U.S. 78, 84-85 (1987).

18 Defendants urged us to grant the Commissioners in their individual capacities absolute legislative immunity. Since we uphold summary judgment in favor of the Commissioners on the merits, we need n ot address this issue. We also find meritless plaintiffs’ final argument thatthe district court’s grant of summary judgment violated their right to a jury tri al. -29- Absent any relevant information about male prisoner s at Box Elder County Jail, plaintiffs cannot make the required threshold showi ng that they were treated differently from male inmates who were similarly si tuated to them. Plaintiffs’ equal protection claims therefore fail. See Women Prisoners v. District of Columbia , 93 F.3d 910, 925-26 (D.C. Cir. 1996) (female inmates at cocorrectional facility foreclosed from making equal protection claim because no evidence regarding programs available to male inmat es at same facility). 17 In sum, plaintiffs failed to meet their burden of p resenting sufficient facts to show that Sheriff Limb and the Commissioners vio lated either the Eighth Amendment or the Equal Protection Clause. Conseque ntly, the district court properly granted summary judgment for these defendants. 18-30- IV As the County defendants readily concede, Mr. Pulsi pher’s conduct towards Ms. Barney and Ms. Christensen was inexcusable and “outrageous.” Aplee Br. at 23. Such outrageous conduct by Mr. Pulsipher, with out more, is not enough to impose liability on the County, or the Sheriff and the Commissioners in their individual capacities. Mr. Pulsipher has been crim inally convicted for his behavior and the section 1983 suit against him is p ending below. Ms. Barney and Ms. Christensen are therefore not left entirely without relief.
We AFFIRM

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